The issue presented here is whether a state can exercise personal jurisdiction over a nonresident defendant who was personally served while present in the state if that defendant does not otherwise have sufficient contacts with the state to satisfy the minimum contacts test announced in International Shoe.

The issue arises in the following context.

The parties lived virtually all their married lives in New Jersey.

The split up in 1987.

They had two children about ages 2 and 8 at the time, and they entered into a marital settlement agreement resolving everything in New Jersey.

The wife then moved to California with the children, as planned, and husband filed for dissolution in New Jersey and asked the court to incorporate their marital settlement agreement.

Before he served Mrs. Burnham with his petition, she filed an action in California for legal separation and filed him after he brought the children back from visiting with them to her home in Mill Valley, California.

Mr. Burnham moved to quash service arguing that he did not have sufficient minimum contacts under Kulko, International Shoe and similar cases and that under this Court's decision in Shaffer v. Heitner the fact that he was served in California was no longer relevant at all.

The trial court initially agreed with Mr. Burnham and granted his motion, in part holding that there were not sufficient minimum contacts and there was no personal jurisdiction.

It reconsidered that order when Mrs. Burnham's attorney convinced it that the fact that he was served in the forum was sufficient and that notwithstanding what this Court held in Shaffer and the language in Shaffer, personal service is still sufficient.

The court of appeal denied the petition for a writ in a decision which, again, said that Shaffer, the language in Shaffer, had not changed the traditional rule... it goes by the nickname of transient jurisdiction.

It relied on cases such as the Supreme Court's case in Nevada, Cariaga which had said this Court has never directly held that transient jurisdiction is no good so we will apply it until we are instructed otherwise.

We're here today to ask you to instruct the courts of this land otherwise, to give effect to what the Court said in Shaffer, that personal jurisdiction in all cases must be tested by the minimum contacts test.

Now, it's important to keep in mind that although the doctrine is often called transient jurisdiction or sometimes, more colorfully, gotcha jurisdiction, what's really at issue is not whether the defendant is passing through momentarily.

What's at issue is whether the fact of service on a defendant while he is in the forum is alone sufficient.

The traditional view that it was founded on the notion that... what jurisdiction is all about, what personal jurisdiction is all about is whether the state has power over the defendant, physical power over the defendant.

And it does, according to the traditional view, when a defendant is within its boundaries.

That view was long criticized by the commentators and was rejected by this Court in International Shoe and then again in Shaffer.

That power, physical power over the defendant is not fundamentally the basis for the exercise of state court jurisdiction.

Unknown Speaker: Mr. Sherman, even if you are correct that some minimum contact is necessary for personal jurisdiction, wouldn't the transitory presence within the state of someone meet that test--

Mr. Sherman: Well--

Unknown Speaker: --in a good many instances?

Mr. Sherman: --I think not, Your Honor.

And it's important to distinguish--

Unknown Speaker: I would have thought so and that perhaps someone who voluntarily enters a state to transact some business or to visit there might well meet whatever minimum contacts are--

Mr. Sherman: --That... that--

Unknown Speaker: --required.

Mr. Sherman: --On that... on those facts, yes.

If he were just passing through momentarily, say, stopping over on his way to Hawaii, not conducting any business or--

Unknown Speaker: Well--

Mr. Sherman: --classically flying over--

Unknown Speaker: --yes.

You have a different situation is someone is flying over the state, overhead--

Mr. Sherman: --Right.

Unknown Speaker: --and is served in mid-air than you do with someone in your client's--

Mr. Sherman: That's correct.

Unknown Speaker: --position.

Mr. Sherman: But the question that your hypothetical poses is what kinds of contacts would be sufficient under the minimum contacts test for somebody who was not in the state very long.

And the answer to that would depend upon applying the minimum contacts test and typically the cause of action has to be related to or rise out of contacts that the defendant has.

And in your example, for instance, if somebody is... is in the state transacting some business, even though they are there very briefly, if there is a cause of action that the plaintiff has against that defendant that arises out of his transacting that business, there's no question that under the minimum contacts test--

Unknown Speaker: Mr. Sherman--

Mr. Sherman: --there would be a restriction.

Unknown Speaker: --This sort of points out... points up one of the problems with... with abandoning the gotcha test.

One of the nice things about the gotcha test was that it made very simple the preliminary question of jurisdiction, which ought to be simple, it being a preliminary question.

It's very silly to have to litigate about that and what you're saying is by abandoning the gotcha test we're going to have to look in every single case to see whether the individual is not only served... or... or the state courts will... not only whether the individual was served there but whether the suit pertains to his presence there and so forth.

It's a big deal.

Mr. Sherman: Well, Your Honor, if there were no Fourteenth Amendment to the Constitution and we didn't have to worry about due process and we're looking for an easy test, then that might be an easy test that a court would want to--

Unknown Speaker: But for 200 years--

Mr. Sherman: --Well, that's true.

It's been around for a long time.

But quasi in rem jurisdiction was around for a long time too and this Court said in Shaffer that it was fundamentally unfair and did not comport with the Fourteenth Amendment and, notwithstanding its lineage, it was consigned to the dustbin of judicial history.

Unknown Speaker: --Well, easy tests are not unrelated to the due process clause.

There's a high degree of predictability.

I think many lay people understand, without thinking about... in terms of jurisdiction or in rem or in personam, that if you're within the borders of a state, you're subject to that state.

That's all.

Mr. Sherman: I think what most people would think is if you're within the borders of the state, you're subject to the power, if you will, of the state.

If you do something in the state that's wrong, they can arrest you.

If you're injured, you can go to the hospital and get treated.

And if a cause of action arises out of those activities, I think a defendant could rightfully expect to be sued on them.

But if you are in the state for reasons which do not give rise to the cause of action that is sued on, then I don't think you would expect to be subject to a lawsuit over them, which is what happened in this case.

Unknown Speaker: Well, the minimum contacts really... test, though, really developed on when is service outside the state satisfactory.

Mr. Sherman: That's true.

That's true.

And I think the interesting--

Unknown Speaker: And International Shoe I thought seemed to recognize the validity of the so-called gotcha.

Mr. Sherman: --Well, I think there's kind of been a mistaken understanding of what that phrase meant.

The courts... not this Court because it hasn't addressed it, obviously, but the state courts that have addressed it... have looked at International Shoe and have said if... the language there, if the defendant be not present in the forum.

But the issue is not if the defendant be not present in the form.

It's if the defendant be not served while present in the forum.

If I have... say I'm... I'm a plaintiff and I... in New York I enter into a contract with two defendants in New York and those two defendants then decide to take a trip to Hawaii and they both got to Hawaii contemplating a two-week trip.

And there's a dispute between us that arose in New York over the validity of that contract and I decide to sue them in New York.

So I file a lawsuit in New York and I get my process server to go to Hawaii and I serve one of them who has been there for a week and then... I'm sorry, I want this lawsuit to be in Hawaii, not in New York.

I serve them... one of them in Hawaii who has been there for a week and he calls the other fellow and he says, the process server is here, you'd better leave, and that person leaves a week later.

He's been there twice as long and has twice as many contacts, he's not subject to the jurisdiction of Hawaii.

But the first fellow is because the process server happened to catch him.

And that seems to me to be an irrational result.

Unknown Speaker: xxx Pennoyer was irrational.

Mr. Sherman: Well, that's correct.

I think this Court said as much in International Shoe and then in Shaffer.

Unknown Speaker: Well, I don't know.

It seemed to recognize Pennoyer.

It didn't overturn... overturn Pennoyer.

Mr. Sherman: I think it overturned the theoretical underpinning of Pennoyer when it said that power was no longer the basis of jurisdiction.

It's true that was in the context of out-of-state defendants, but the reasoning of the decision was to reject the notion that power was the basis of jurisdiction.

That's why you can get jurisdiction over out-of-state defendants after International Shoe, because power is not the basis for jurisdiction.

If power is not the basis for jurisdiction, then the fact that you physically get power over the defendant no longer can be the basis for jurisdiction either.

But going back to the question--

Unknown Speaker: May I ask you another sort of general question?

Do you... you apply the same theory to criminal jurisdiction?

Unless the man committed the crime in the state he can't be apprehended when he goes through and then extradited?

Mr. Sherman: --I really do not know enough about criminal law--

Unknown Speaker: Say... say somebody commits a crime in Nevada and they send out an all points bulletin and he's hitchhiking through New Mexico and... but he's not... doesn't intend to stay there, had no contacts at all whatsoever, but they arrest him and extradite him.

I guess that... you'd have no power to do that.

Mr. Sherman: --Well, I don't know enough about criminal law to give the best answer to that.

Unknown Speaker: But you--

Mr. Sherman: But my off-the-cuff answer would be that although the state may have the power, because it's given the right to do so by this Court, to arrest the defendant and to ship him back to the other state, extradite him, that the analogy in the civil case would be that if the defendant is served in the law... in the forum, that the state then can shift the lawsuit... should shift the lawsuit back to the original--

Unknown Speaker: --Well, forum nonconvenience allows that.

They can shift the lawsuit back.

Mr. Sherman: --But... well, but the extradition is mandatory, is it not, in your hypothetical?

It has to go back to be tried in the state where he was from, where he committed the act.

Unknown Speaker: Yeah, but the only way you get jurisdiction over him is in the gotcha theory.

Mr. Sherman: No.

The only way you get jurisdiction over him in a criminal case is you actually arrest him.

Unknown Speaker: That's right.

You--

Mr. Sherman: But the purpose of arresting him--

Unknown Speaker: --But your power to do it is based entirely on the fact that he's... he happens to be passing through the state.

Mr. Sherman: --That's true, but--

Unknown Speaker: I don't know why that's any more unfair than--

Mr. Sherman: --But the--

Unknown Speaker: --or any less unfair than what you say.

Mr. Sherman: --But the consequence of your hypothetical is that the defendant winds up being tried in the state of origin.

Unknown Speaker: Well, that's true.

But--

Mr. Sherman: And the analogy--

Unknown Speaker: --there's a legal proceeding in the state of arrest, namely, the extradition hearing and he might conceivably win there.

Mr. Sherman: --Well, but in the civil case the analogy would be there's a civil proceeding in California and he is served in California and then he makes his motion to quash for lack of jurisdiction, and it's granted, and the case then goes back to New Jersey.

Unknown Speaker: Yeah, but I don't know why he--

Mr. Sherman: Because he doesn't have sufficient--

Unknown Speaker: --I don't know why the criminal--

Mr. Sherman: --contacts--

Unknown Speaker: --defendant wouldn't be entitled to have his motion granted also on your theory.

I don't know why... because the only thing... the only basis for jurisdiction over him is he happened to be there.

Well, anyway, that's a different case, I guess.

It seems to me it's a stronger case than... well, anyway, go ahead.

Mr. Sherman: --There's no more I can say about that.

I'd like to advert back to Justice Scalia's question for a moment about a bright-line rule and point out that things are (a) not so simple even under Pennoyer because even under Pennoyer, with respect to out-of-state defendants, in order to allow there to be jurisdiction over out-of-state defendants all kinds of fictions and exceptions were created in... post-Pennoyer, like in Hess.

I mean, if you drive in the state, you would priorly consent that the registrar of motor vehicles is your agent for service of process.

I mean, there are all kinds of exceptions that were created.

It was not simple prior... under the Pennoyer regime.

Now, if it were--

Unknown Speaker: It's clear that one way you... you can place the jurisdiction in the case just beyond doubt is you serve the individual in the jurisdiction.

I mean, yeah, there are a lot of refinements as to other ways that you may get him, but up until now you have known that.

One way to be sure, you serve him.

Mr. Sherman: --Well--

Unknown Speaker: That... that would be gone?

Mr. Sherman: --That's true.

The second... second part of my answer to your question is that in Stanley v. Illinois and in Shaffer this Court said that due process should not be sacrificed for the sake of simplicity, that the cost is too high.

And Justice Marshall in Shaffer said that quasi in rem jurisdiction, traditional though it may be, and easy to apply though it may be, is not consistent with fundamental notions of due process.

And the fact that it's easy and simple and eliminates cost is not sufficient for constitutional scrutiny.

Unknown Speaker: Mr. Sherman, what do you think of the amended restatement version of when jurisdiction applies?

Mr. Sherman: I think there are several problems with it.

It's obviously somewhat of an improvement over the traditional rule because it allows for exceptions.

However, I think there are three things wrong with it.

The first is that it starts from the notion that the service--

Unknown Speaker: That there is jurisdiction?

Mr. Sherman: --There is jurisdiction.

Unknown Speaker: It starts from that premise?

Mr. Sherman: That's right.

And the basis for that, I believe, is that the restaters were unwilling to give up the notion that jurisdiction is fundamentally based on power.

Unknown Speaker: Well, it struck me as maybe a pretty good statement of what the rule might be.

That unless... that jurisdiction does attach unless it's just too attenuated.

And the notes refer to special circumstances which might include the criminal case where otherwise there will be no opportunity to arrest the defendant.

Mr. Sherman: That's true.

But in order to accept it jurisprudentially I think this Court would have to say that its prior decisions which indicated that jurisdiction is not fundamentally based upon power are incorrect, that in one sense jurisdiction is to be continually based upon power although the defendant can then show reasons why it shouldn't be exercised... then jurisdiction will not be exercised.

Unknown Speaker: Do you think... do you think we really... this case really... is it really necessary in this case for us to decide this issue?

It seems... isn't it open... isn't the issue open as whether there were plenty of contacts here anyway besides just presence?

Mr. Sherman: Well, no, I don't believe so, Your Honor.

The court of appeal opinion, which you are reviewing, refused to issue a petition... refused to grant the petition for writ of mandate and compel the trial court to quash the service because it held that service on the defendant while he is present in the forum is still a basis for jurisdiction.

Unknown Speaker: But here's a... but it said in light of the evidence presented to the trial court, the petitioner's... within California was for the dual purposes of visitation and conducting business activities.

Mr. Sherman: That's correct.

That is--

Unknown Speaker: So the imposition of personal jurisdiction in this case will not affect... will not act to discourage parental visitation.

Mr. Sherman: --That's correct.

Your Honor, the reason the court of appeals said that is it was responding to our argument--

Unknown Speaker: I understand.

I understand.

Mr. Sherman: --as to... so--

Unknown Speaker: But nevertheless--

Mr. Sherman: --It was not--

Unknown Speaker: --we... we judge this case... as the case comes to us, he wasn't just there; he was there conducting business.

Mr. Sherman: --That's true.

That's true.

But the court of appeal opinion was not upholding jurisdiction on the ground that he was conducting business.

Unknown Speaker: Well, maybe we don't have--

Mr. Sherman: And it couldn't have--

Unknown Speaker: --to hold that, but I don't... if that was... if that's the case--

Mr. Sherman: --It doesn't say that--

Unknown Speaker: --maybe we made a mistake granting the case.

Mr. Sherman: --It doesn't say that jurisdiction was being upheld on the ground that he has sufficient contacts under the minimum contacts test, and it couldn't have because it was quite obvious that the trial court did not ground jurisdiction on that basis, and it couldn't have because under California law and under this Court's decisions there are insufficient contacts as a matter of law to uphold jurisdiction here for two reasons.

The first is that doing business in a state only gives rise to jurisdiction under the traditional test, if that's what the Court thought it was applying, or if that's what this Court wanted to apply, for causes of action arising out of that business.

And the cause of action here does not arise out of the business that Mr. Burnham did in California.

The wife is seeking to invalidate a marital settlement agreement that she executed in New Jersey.

That has nothing to do with the husband's contacts in California.

Secondly, California has held in Modlin v. Superior Court, which is in our briefs, that if a person, a father, combines coming to a state to visit his children with doing some business, the combination of those do not meet the minimum contacts test.

That's Modlin v. Superior Court, 176 Cal. App. 3d 1176.

So, the court of appeal--

Unknown Speaker: I suppose if all that the wife wanted to do was to change custody, she could have served him out of state.

Mr. Sherman: --over the defendant in order to adjudicate status of the children.

But the Uniform Child Custody Jurisdiction Act explicitly says that you don't then litigate support issues.

Unknown Speaker: Mr. Sherman, if... if we can't look to 500 years, or however long it is of... of the common law as to what, you know, fundamental fairness requires... we can't really on that... and we can't even rely on the American Law Institute, where... where do we search--

Mr. Sherman: The minimum contacts--

Unknown Speaker: --for this... for this principle of what fundamental fairness requires?

Mr. Sherman: --You just... you just apply the minimum contacts test across the board.

Unknown Speaker: But this is a contact.

I mean--

Mr. Sherman: Well--

Unknown Speaker: --physical presence is a contact.

Mr. Sherman: --That's true.

That's true.

Unknown Speaker: I mean, everything is a contact of sorts.

Mr. Sherman: That's true.

And I--

Unknown Speaker: And our... our tradition would seem to show that it's... that it's enough of a contact.

Mr. Sherman: --No, because--

Unknown Speaker: Why not?

Mr. Sherman: --Because the tradition does not found jurisdiction on the fact that a person is present.

It founds jurisdiction on the fact that, while present, the person is served.

Now, you can do away with the gotcha theory of jurisdiction and still say that if a person is present in the state, he has a contact with the state.

There's no question about that.

The question is what significance does his contact have in assessing whether or not the minimum contacts test of International Shoe is met.

Mr. Sherman: Thank you, Mr. Chief Justice, and may it please the Court:

In thinking about this matter over the lunch hour it occurred to me that I ought to say that we're really not asking this Court to do anything very radical.

Although it's true that the doctrine of transient jurisdiction has been around for a long time, there has been an evolution in the law which has pointed in the direction of abolishing it.

In fact, in Shaffer at page 213 the Court said,

"We therefore conclude that all assertions of state court jurisdiction must be evaluated according to the standards set forth in International Shoe. "

That's been quoted very often.

However, there's a footnote to that sentence which has not been quoted very often, and it says,

"It would not be fruitful for us to reexamine the facts of cases decided on the rationales of Pennoyer and Harris to determine whether jurisdiction might be sustained under the standards we adopt today. "

"To the extent that prior decisions are inconsistent with this standard, they are overruled. "

So, already in Shaffer the Court had recognized that the law was moving in the direction of being concerned with fundamental fairness.

And I think if you look at the old rule coming out of Pennoyer, it perhaps was fair in 1877 to say that, since you can't get service on the defendant outside the jurisdiction, if you're lucky enough to catch him in the jurisdiction, well, you've gotten him and you've got jurisdiction over him.

But after International Shoe liberalized the degree to which you could get jurisdiction over the defendant by service outside the forum, the rationale for saying that you can get jurisdiction over him by serving him in the forum was totally undercut.

Therefore, if you abolish the doctrine of transient jurisdiction in this case, all you're doing is kind of completing a trio of cases that started with International Shoe, Shaffer and now this case.

Unless you do something to the doctrine of transient jurisdiction, we're stuck with cases like Grace v. MacArthur where you're served if you're flying over and have no contacts.

You're stuck with cases where the defendant comes into the forum and just steps over the line and is served with a piece of paper.

You're stuck with cases where somebody is on the way to Hawaii and the plane lands in San Francisco airport and they're served and have no other contacts with San Francisco.

None of those things would seem to comport with fundamental notions of fair play and substantial justice.

Unknown Speaker: Well, none of those things are involved here either.

Mr. Sherman: That's true.

That's true.

But the point of those examples is that if you don't do anything to the doctrine of transient jurisdiction, that's where the law will be left.

So I urge the Court to keep the case--

Unknown Speaker: xxx.

Mr. Sherman: --That's true.

It has been there.

That's why Grace was decided the way it was.

But the reason it was there--

Unknown Speaker: So, we've been stuck with these examples for a long time?

Mr. Sherman: --That's true.

And the time has come to liberate us from them and to make sure that they don't happen again.

That was the whole point of International Shoe and Shaffer.

We were stuck with the doctrine of quasi in rem jurisdiction for a long time.

But it finally was recognized that it was outmoded and it was no longer necessary and the Court abolished it.

Unknown Speaker: I assume that the state... the state supreme courts can deem it outmoded as far as their states are concerned or the state legislatures.

Mr. Sherman: Well--

Unknown Speaker: Right?

Mr. Sherman: --This Court presides over the area of personal jurisdiction because it interprets what is consistent with the fundamental due process--

Unknown Speaker: Well, that's right.

Mr. Sherman: --protections that defendants have.

Unknown Speaker: But what... what is... what is consistent with due process under the Federal Constitution?

I mean, we... we... we might decide that this has been around for too long for us to say that it isn't in accordance with due process, whereas the state supreme courts, I assume, would be freer than we were.

Mr. Sherman: Well, the problem I see with that is the state supreme courts have been loath to overturn the doctrine precisely because this Court has not.

I mean, you have--

Unknown Speaker: Well, they'd have no choice if we did.

Mr. Sherman: --Well, that's... that's true.

On the other hand, it doesn't seem as if any state court, high court, has been willing to, as Judge Goldberg said so colorfully in Mordelt, to ferry the rule across the River Styx without instructions from this Court.

So, nobody seems to be willing to take that step because they feel bound by Pennoyer v. Neff.

Unknown Speaker: What about... what about state legislatures?

Mr. Sherman: I don't know of any legislature that has seen fit to... as a matter of fact, they've all gone the other way, as California has, and enacted a long-arm statute that says we have jurisdiction if it's consistent with the Constitution.

And this Court tells states what's consistent with the Constitution.

Unknown Speaker: Well, then... then how do we know this is inconsistent with fundamental principles of fairness if the state... state courts haven't thought so... and they certainly could do it under state law.

They're... they're not bound by us on that.

Mr. Sherman: Well--

Unknown Speaker: I mean, I think they could say, as a matter of our state constitution, we don't think it's... it's appropriate, right?

And the state legislatures could certainly decline to exercise this kind of offensive jurisdiction.

And how many state legislatures have abandoned it?

Mr. Sherman: --Not to my knowledge any.

Unknown Speaker: Nobody.

Mr. Sherman: But there is--

Unknown Speaker: There's... there's a certain builtin pressure, I suppose, from the bar in every state that at least we want to be able to serve as many people as can be served in another state.

So, I would think that the chances of legislatures substantially restricting the jurisdiction of state courts on their own are probably not great.

Mr. Sherman: --That's true.

But I think the more fundamental question is that the reason that they don't do it is because they perceive that they're bound by Pennoyer.

They don't perceive, I think, that they have the freedom to do it.

Because if you read all of the state court decisions, they all look to this Court and say, well, what has the Supreme Court ruled?

Unknown Speaker: They're not bound by Pennoyer.

We didn't say that states must exercise this jurisdiction.

We just said that they may exercise this jurisdiction.

Mr. Sherman: That it's constitutional if they choose to do it.

Unknown Speaker: That it's constitutional if they choose to do it.

Mr. Sherman: And they have--

Unknown Speaker: And it's constitutional if they choose not to do it, too.

Mr. Sherman: --And they have statutes which say they may exercise jurisdiction to the full extent permitted by the Constitution.

There's... there are two additional reasons why... coming back to Justice O'Connor's question earlier today... why I think the Court should not adopt the restatement view if the Court is willing to abolish the pure form of transient jurisdiction which makes everything turn on service.

The first is that it would accomplish a shift in the burden.

Traditionally it's the plaintiff... when the defendant objects to jurisdiction, it's the plaintiff that has the burden of establishing a basis for jurisdiction.

This would put the burden on the defendant to disprove why... to prove why there should not be jurisdiction.

And that would be an incentive for plaintiffs to lure defendants to the state and to serve them, as happened in this case, in a way that would interfere with other interests.

And I think it would be better if there was one standard that is consistently applied in making the plaintiff establish jurisdiction.

Secondly, if you do the restatement view, the restatement says jurisdiction is served in the forum unless otherwise unreasonable.

This Court would then have to begin a process of deciding numerous cases to define the parameters of what's reasonable and unreasonable under the restatement test.

There's already a body of law from this Court under the minimum contacts test defining what's reasonable and unreasonable, and it would be much simpler for everybody if that body of law was just engrafted on to all assertions of state court jurisdiction.

Finally, I close my opening comments this afternoon by saying that if the Court determines that the rule has been around so long that we should keep it even though it may have unfair results, it shouldn't be applied in a case where somebody is served in the state while they're visiting their children, which is what happened in this case.

And the reason for that is fundamentally that in Asahi this Court... and in World-Wide Volkswagen this Court made clear that one of the things to be considered in determining whether or not a state is exercising jurisdiction consistent with the Constitution is the degree to which it impacts upon the shared substance and policies of the states.

I don't think it's beyond question that the share and substantive policy of the states in the area of child custody visitation is to encourage families of divorce to maintain contact between parents and the children after the divorce.

That policy will be impacted adversely by allowing transient jurisdiction in a case where somebody is served while they're visiting their children.

Therefore, if the Court does not totally abolish the rule and if the Court does not accept the restatement formulation, or even if it does, one of the things that it should say, it's unreasonable to allow jurisdiction to be predicated upon service on somebody who is in the state when they're seeing their children.

I'd like to reserve the rest of my time for rebuttal, if I may.

Unknown Speaker: Very well, Mr. Sherman.

Mr. Devereaux.

Argument of James O. Devereaux

Mr. Devereaux: Thank you, Mr. Chief Justice, may it please the Court:

In the opinions issued by this Court over the last 45 years, starting with International Shoe, there has been a clear trend toward relaxing limits on state court jurisdiction.

As Justice White observed in his opinion in World-Wide Volkswagen v. Woodson, this relaxation is largely attributable to the fundamental transformation of American society that has taken place and which has been accelerated in the last few years.

It is ironic that in this case, today as we stand on the threshold of the 21st century at a time when technological progress in travel and communication has resulted in a shrinking of our planet to the size of a global village, and at a time when the citizens of this country, more than at any other time in our history, are more likely to travel across state borders with ease and with increasing frequency, the petitioner is arguing for a retraction of the permissible reach of state jurisdiction and a categorical rule that presence within the boundaries of a... of the forum state should no longer provide the basis for the exercise of state jurisdiction under any circumstances.

Unknown Speaker: Well, the end result of this approach is the state ought to be able to serve him anywhere.

Mr. Devereaux: Well, I don't believe that this case is limited to the mere fact that this particular defendant was served within the State of California.

That is a fact in this case, but under all the facts in this case in a period of less than two and a half years, from October of 1987 until today, this particular defendant/husband has been physically present in California more than 20 times.

This is simply not a case of transient presence.

Unknown Speaker: So you think... you think he could have been served in New York?

Mr. Devereaux: I think--

Unknown Speaker: Under a long-arm statute.

Mr. Devereaux: --To be perfectly honest, I do think that that would be a reasonable rule because under this case the fact is--

Unknown Speaker: But is that issue open to us in this case?

Mr. Devereaux: --I'm sorry?

Unknown Speaker: Is that issue open to us in this case?

Mr. Devereaux: The... my understanding of the particular facts in this case are that this husband not only was served personally in Mill Valley, California in January of 1988, but was also served by substituted service, not personal service, in New Jersey, and that the service in New Jersey complied with New Jersey requirements relating to substitute of service.

Unknown Speaker: But the rationale of the court below was personal presence is enough.

That's all.

Mr. Devereaux: That is correct.

I do think it's important to point out, however, that while the argument was presented to both the superior court and the court of appeal in California, that in addition to actual physical service in California, the contacts here, the connection here, is... is sufficient disclosure--

And... and what I feel I should point out is that the California courts did not reject that argument.

They simply felt they didn't need to address it because they were able to resolve the case on the basis of service.

Unknown Speaker: --But it was raised below?

Mr. Devereaux: It was raised below in each of the courts.

Unknown Speaker: Mr. Devereaux, in your view, however, it would also be sufficient if the petitioner had been served while flying across... over California in an airplane.

Mr. Devereaux: No.

That really is not my position.

I... I personally don't believe that the facts of Grace v. MacArthur are reasonable and in that case did not lead to a just result.

So that I am not arguing in favor of... of those facts.

I'm not really addressing a whole--

Unknown Speaker: How about someone who has to change planes in an airport to get to another destination and is served while changing planes?

Mr. Devereaux: --Well, those facts are not the facts in this case.

I would have--

Unknown Speaker: No.

We know that.

Mr. Devereaux: --I would have a harder time justifying jurisdiction based on those facts, but I happily don't have to specifically address those facts in this case because here we have not only the husband's repeated--

Unknown Speaker: But I thought your power theory would resolve those rather unpleasant questions.

Mr. Devereaux: --I believe that the power theory would resolve those.

Unknown Speaker: And that's the theory you espouse.

Mr. Devereaux: No.

The theory--

Unknown Speaker: No?

Mr. Devereaux: --that I espouse is that the exercise of state court jurisdiction in each case must be fair and reasonable under the standards of International Shoe and that that is the effect in this case, that the exercise--

Unknown Speaker: Well, how is that different from the restatement approach?

And I think that what this case really does not call for is a sweeping pronouncement by this Court abolishing the presence rule of jurisdiction for all cases.

The presence rule, as the restatement has reformulated it, is eminently reasonable because it says present... presence continues to be a proper basis for the exercise of jurisdiction as long as, under all the facts and circumstances, it's not unreasonable to--

Unknown Speaker: Yeah, but I'm sorry to hear--

--Yeah, but then you--

--you say--

--Just a minute.

Okay.

Then... then you give up a certain element of certainty in the due process standard of Pennoyer that Justice Scalia referred to in his question to you... to your opponent, that every... in... every jurisdictional inquiry is going to be kind of an ad hoc fact-specific one, isn't it?

Mr. Devereaux: --Well, I think that, as the Court pointed out most recently in 1984 in Burger King, the physical presence of the defendant in the state can in fact enhance the affiliation of the defendant with that state and can enhance the foreseeability of being sued in that state.

And I don't see anything inherently unfair about pinning jurisdiction on the fact that the defendant in this day and age where people do in fact travel across state borders regularly is found within the state and therefore is... is subject to the jurisdiction of that state.

This Court has--

Unknown Speaker: You're... you're not disagreeing then with your... with your opponent here.

You say we should just look at each case and decide whether it's fair or not.

That's what you want us to do in this case.

Mr. Devereaux: --Well, I think that... I think that--

Unknown Speaker: I mean, if that's the invitation, frankly, I don't think the mere fact that... that this person happened to be there to see his daughter... that doesn't seem to me very fair.

Mr. Devereaux: --This person didn't just happen to be there to see his daughter, however.

This person comes to California regularly; he has acknowledged in papers that he's filed in the California courts that he does in fact--

Unknown Speaker: Well, maybe we should remand to the court of appeals to... to decide whether... the court of appeals didn't purport to decide it on a totality of fairness basis, did it?

Mr. Devereaux: --No, it did not.

It didn't reach that issue--

Unknown Speaker: No?

Mr. Devereaux: --because it felt--

Unknown Speaker: Then it--

Mr. Devereaux: --that the presence rule continued to be the law in this country, and I believe--

Unknown Speaker: --But you're saying it isn't.

You're saying it's--

Mr. Devereaux: --No, I'm saying--

Unknown Speaker: --the totality of everything.

Mr. Devereaux: --No, no, no.

I'm saying that it is and that it ought to continue to be, and that if ever this Court or any other court is presented with a particular factual situation where it leads to an unfair result, that is the time--

Unknown Speaker: You can't have it both ways.

You either want us to decide it on the basis that presence is enough, and we either decide it or don't decide it on that basis, or else you say it isn't necessarily enough and we ought to remand it to the court of appeals.

But I don't see how you can... how you can have it both ways.

Mr. Devereaux: --Well, then my position is that this Court should say that the law has been that presence is sufficient and should continue to say that.

It is true that there is an alternative basis, if the Court chooses not to do that, to uphold this decision.

And that is, by pointing out that the contacts here... the connection here is significant.

I think it's important to point out that state courts always have the right to decline the exercise of jurisdiction.

And in fact, probably the most relevant case where that occurred was Kulko, where in fact the California courts did decline to exercise jurisdiction and this Court upheld that judgment on their part.

In this case and in Kulko, of course you did not have the actual presence of the defendant, and that is a major distinguishing factor between the facts of this case and the facts of that case.

But there are additional important differences as well between this case and the facts in Kulko.

And perhaps the most important of those are the fact that here both California and New Jersey have carefully considered the propriety of those respective states assuming jurisdiction in this matter not only on the superior court level but on every level of the state judicial system in both states.

And there is no conflict between the decisions of those two states.

They both came to consistent conclusions that California is an appropriate state to assume jurisdiction in this case under the circumstances.

In addition to that, and in addition to the fact that the husband was not physically present within California in Kulko, here you have more substantial contacts, more substantial connection between the defendant/husband and the state.

And on that basis, I think that the exercise of jurisdiction is eminently reasonable.

In addition to all of those factors, here you have California being the state of domicile of the wife and the children.

I think that the decisions issued by this Court in recent years, starting with Kulko and continuing with World-Wide Volkswagen and Burger King and Keeton and Asahi Metal Industries, may reveal a shift in the analytical approach that the Court is taking toward the question of fairness and substantial justice, a shift in favor of evaluating the various interests and the other factors that are involved in the case.

And particularly in a family law case, the fact of domicile of one of the spouses and the children, the interests of the state of domicile in the litigation in the subject matter of the case is an extremely important factor to be taken into consideration.

Unknown Speaker: Mr. Devereaux, the question presented in the petition for cert. and on which I thought we had... we had granted cert. and what I thought we were here to decide or what you were here for us to decide, is this: is service of process on a nonresident defendant while he is physically present in the forum state a sufficient basis by itself for the exercise of personal jurisdiction.

Now, you are inviting us to decide it not on... this case not on this ground, but to decide whether in the particular facts and circumstances of this particular controversy there was enough contact.

Frankly, that's not an issue that's of sufficient national importance to have... to have warranted the attention that this Court has given to this case.

I thought what we accepted cert. on was whether physical presence alone is enough.

Mr. Devereaux: Well, Justice Scalia, I, of course, can't speak to the reasons for the Court's granting cert. in this case.

That is an important issue and I am not trying to persuade the Court to avoid deciding that issue.

I believe that the Court should uphold the decision on that basis.

But what I am suggesting is that this case also provides an opportunity, should the Court desire to take the opportunity, to decide the case on alternative grounds as well, one of which is the question of sufficient connection or contacts, another of which is an evaluation of California's interest as a state of domicile and the interests of the wife and children in this case.

The Court, of course, has no obligation to decide those issues and can limit its decision to the issue of the continued viability of the presence basis.

But the... the case does involve... commend itself to these additional alternative grounds, should the Court desire to address them because they were raised below in the state courts and have been preserved.

They are in the record, and depending upon the approach that the Court would like to take, those issues are available for a decision.

But if the Court desires to limit its decision to the issue of whether or not the presence of the defendant within the state and service of process upon him while he was present continues to be a sufficient jurisdictional basis, then my position is that the answer to that is yes.

It has not only been... that principle has not only been established in Pennoyer v. Neff, but it has in fact been acknowledge by this Court in more modern decisions, including International Shoe, where the Court expressly acknowledged that the minimum contacts analysis related to service outside the state where the defendant was not present but at least by implication recognized that if a defendant is present within the state, that is a valid jurisdictional basis.

The O'Neill v. New York case was also an application of the presence rule where the Court clearly said, the defendant being present in Florida, Florida had jurisdiction over him.

So that all I'm suggesting is that based on the precedent established by this Court in more than one case over the last 100-plus years, an upholding of the judgment of the California courts can be accomplished simply by recognizing that the rule continues to be in effect.

And I think it's particularly significant that when the commentators argued that Shaffer v. Heitner required at least a reevaluation of the presence rule, if not an outright abolishing of it, the American Law Institute did reexamine that rule and concluded that it was not appropriate to abolish the rule but instead retained the rule in a slightly modified version.

And I think this is an indication that the presence rule is valid, it's not unfair and unreasonable and it does lend certainty and predictability to the jurisdictional equation.

So, to the extent that this Court wants to limit its decision to that narrow issue, I would urge the Court to uphold the judgment of the California courts.

Thank you very much.

Unknown Speaker: Thank you, Mr. Devereaux.

Mr. Sherman, you have two minutes remaining.

Rebuttal of Richard Sherman

Mr. Sherman: Yes.

I think that counsel kind of concedes that Grace v. MacArthur is unfair.

It offends our traditional notions of what's fair.

The next step is to say that that means that since it's a question of fairness, it has to be fact-specific to each case.

And that's the nature of due process.

That's the nature of the inquiry into due process.

It has to be, and that is why in Kulko the Court said in this area the grays predominate.

And they have to because otherwise, if you're stuck with this absolute notion that physical power is what jurisdiction is about, then you're stuck with Grace v. MacArthur and nobody seriously defends that.

Unknown Speaker: Do you think the state has physical power of somebody flying overhead in an airplane?

Mr. Sherman: Well--

Unknown Speaker: Physical power over that--

Mr. Sherman: --Well, if the--

Unknown Speaker: --over that person?

Mr. Sherman: --If the territory of the state extends to the air space, then apparently they do.

But it's not, as I started to say before the lunch bell rang, it's not because they're present in the state; it's because they were served while present in the state.

You see, service while present is what accomplished transient jurisdiction.

I'm not contending that if somebody is present in the state that should not be counted in the minimum contacts analysis.

If a person is present, he has a contact.

But then he's only subject to specific jurisdiction for causes of action relating to his presence.

If he is served under the traditional rule, he's subject to general jurisdiction for anything, and that's what makes it unfair.

With respect to the options open to this Court, it seems to me that the court of appeal clearly decided this case on the bounds... grounds of transient jurisdiction being okay.

I think that issue is directly presented here by virtue of the petition for cert. and the court of appeal opinion.

In Shaffer v. Heitner, when this Court rejected quasi in rem jurisdiction even though the Delaware court had not reviewed the matter of well, but are there minimum contacts, the Court went on to do so, concluded not and reversed.

I think that's what the Court should do here.

But at worst for husband, the Court should abolish the doctrine of transient jurisdiction in its pure form, and then, if it adopts the restatement analysis or if it replaces it with minimum contacts, at worse for husband, simply remand that part of the case to the court of appeal to consider whether, now that it can't base it simply on service while present in the forum, what should it do?

I'm quite confident that under California law it will reach the result which it reached in this case.